tv Key Capitol Hill Hearings CSPAN February 28, 2014 10:00pm-12:01am EST
>> the russians, they are concerned over this. what kind of role can russia play in this conflict? how do you see this? >> ukraine has always been a strategic partner. agreements that we have with -- within the framework of these agreements, russia has the authority to act. . believe that russia shall act
since i know the character of mr. putin, i am surprised why he has been so restrained. .hy he has kept silent >> i am talking about you. introduce yourself please. first, mass media have been reporting that you met with the sector. set -- thisrm the fact? regret conducting these talks? representatives --
talks with the representatives of the opposition for negotiations. -- theresentatives were a lot of them. the goal of all of them is to to find aoodshed peaceful solution. there was nothing wrong about that. fortunately, we were not able to find a peaceful solution. i would like to reaffirm that it is not acceptable for me to see
any other alternative to a peaceful solution. this has been due to the actions of these people. i never gave any orders to the police to open fire. the police was without any weapons until the very last moment when they were under threat and people started shooting at them. according to the law, the police has the right to self-defense,
especially when there have been massive acts of attacks to the police. regressive lead. but i do remember 2004 we had a similar situation. 40,000 people came to the railroad station. i went to the railroad station. i stopped be people. i prevented bloodshed. i talked to those who brought them. i said they will never forgive
there is an independent investigation. or someone from the authority. after this independent investigation, maybe we can talk about the courts. i would like not to comment on these questions. i'm very often provoked. here is how i'm going to put it. i am convinced that the time will come and the truth will prevail. everyone will know the truth and this was a show of history on
by the president or prime minister. when we saw what would be the real consequences of signing this agreement. i instructed the government to have a close look at it. the decision was simple. we suspended the talks. we needed to find a way which -- to harmonize trade relations. russia was preparing a similar agreement with the union. the work was being done over several years and was finished. there was a chance of finding a
common approach on a wide range of items. between russia, ukraine and the european union. this was really critical. this was a lot by our trade over with russia. over the past 18 months there was 15 billion. these could have continued. it was hard to estimate what would be the projected losses in the near term.
they cannot mantain the eu standards. of course, the defense industry would have been recently left out. these losses would be the biggest for the ukraine. russia would take protective measures. the negotiations resulted in my addressing the ukrainian government to put the talks with the eu on hold to renegotiate. when we find a mutually acceptable solution, you can meet us halfway.
they have compensation measures. we did not have the time to hold these negotiations. the eu did not offer any steps. >> we have been working for an hour already. if you do have any questions, this is nothing to do what we have arty discussed. i would like the young man who was wearing a pullover to ask this question. >> i would like you to introduce
yourself. did mr. putin confirm that they consider you a legitimate action president? you said you were surprised by russia's reluctance to act. what are you expecting from russia? >> i repeat. i'm the president of ukraine elected by the people. they were free and democratic words. i remain the president of the ukraine. i have not had any meeting with vladimir putin. once i have this meeting i will understand these attitudes and
maybe we will have some kind of discussion about the situation. then i will be able to replace -- reply to your questions. as for the steps that need to be taken by russia, it'll not be correct to say what russia needs to do. russia cannot stay aside and cannot be indifferent to the destiny of such a big partner as ukraine. russia needs to use all the leverage it has to prevent the chaos, the terror that is
>> i would like to address those. they claim to be the incumbent power in ukraine today. think twice before you make the next move. stop the violence. you can see the end is near. they will never accept that. they will never agree to leave with you that kind of country. do not allow more violence and more grief for the ukrainian nation.
if i were in ukraine today, i would bow to each of you. for those in power today, the ukrainian people are nothing. they do not treat them as will. -- as people. the truth will prevail. thank you. >> thank you all. [captions copyright national cable satellite corp. 2014] [captioning performed by national captioning institute] upcoming primaries in texas and illinois. then a look at proposed changes to nutrition labels on packaged food by the fda. anastasia joined by snelling. and we will talk about efforts
to boost and a gun technology programs. -- pentagon technology programs. washington journal is live with your calls and tweets. deaths from hiv continue to decline, but deaths from alzheimer's increase. as many as 16 million will have the disease. is toird reason i am here show people they are not alone. so few people share their personal stores. -- if we sawe someone like me talking about this, it would make us feel less alone. whisper the word alzheimer's. although the whisper is better than the silence the community has been facing, it is not
enough. it has to be yelled and screamed until it gets the attention it deserves. people look to their government for hope. i asked that when it comes to the disease you provide more. >> seth rogen on several hell -- capitol hill. saturday morning at 10:25 a.m. eastern. tv, wesunday on book will take your calls. in-depth on c-span2. -- sundayn history tv at 6:00 p.m.. >> on monday, the supreme court heard oral argument on the epa's
relation of greenhouse gas emissions. seven, they decided that the epa can regulate gases for motor vehicle emissions. after concluding that gases provide a danger, they provided new -- placed new emissions regulations. the justices are considering misused the authority. this oral argument is one hour and 40 minutes. >> we will hear argument in case 12 1146. mr. keisler? >> made these the court -- may it please the court. the situation here is unprecedented in two respects.
epa agreed that -- according to their terms result in a program that would have been unrecognizable to the congress that enacted it. country to congress's and 10, the agency calls a absurd. conclusion -- took the conclusion as a basis for re-writing other parts of the statute. wrongly believes it fixes the problem. this is not a one-time act of statutory rewriting. the agency has said it intends to adjust and readjust the thresholds based on its ongoing assessment of the costs and benefits. may i ask about your interpretation of the phrase --
there are a lot of different interpretations that have gone on. here is some choices. i want to ask you to pick what you are arguing for. your original position was that any pollutant meant -- that was your original position. judge kavanaugh's position is it means any max pollutant. -- any naaqs pollutant. there's another position that says it is really any regulated pollutant other than greenhouse gases. those are four different interpretations. i am asking you which one you are arguing for.
>> i am here on behalf of the private party petitioners. we have two arguments. the principal one of is the one i would like to focus on. and that is because -- and that is where i would choose an the pst program is focused on omissions that have specific impacts. and not globally undifferentiated phenomena. ofi take it that the sort ozone pollutants are not area specific. would your interpretation at who does? trucks if the epa could not make an -- >> if the epa could not make a regulatory finding -- >> can i ask a follow-up?
that to me is the quintessential ambiguity and a statute where we give deference to the agency. even come tocannot one interpretation, why shouldn't we defer to the agency? the deference is always subject to reasonable interpretations. >> all it says as i understand -- other than that you review there are too many people it is regulating -- is that we cannot implement it immediately. streamliningd with
and other adjustments, it cannot do this. it just as we can't do it right away. roof --ld like to andain a deeper problem then address why it is the only correct interpretation. >> kenley clarify whether you -- canith the dissenting we clarify whether you agree with the dissenting judges on the d c circuit? you've got a footnote saying there are a lot of differences. -- brief turns 180 degrees from that. >> i understand that having six opening briefs is that the most helpful way to present our position.
there are two arguments. our principal argument, and the one i would like to focus on, is that greenhouse gases are not included within the pst program. -- psd program. >> that is the clause that they are not local. >> yes. >> what you make of the endangerment finding that they have severe effects at the local level? they exacerbate ground-level ozone and smog. >> every effect that any willonmental phenomena has be felt in some local area. our point is that is not the kind of measurable regionally
affect that the psd statute refers to. >> it certainly not measurable. before you do that, we have an outstanding question. >> the problem is not that the agency rewrote the threshold and said we would eventually try. when they say they want to get down to the apartment buildings and high schools, it is contravening congressional intent. >> i read them as saying they will try to do it, but make whatever it dungeons -- make whatever exemptions are necessary.
>> be exempt if they are talking about, in order to seal with the exemptions, are to have general permits by category. >> it clearly is not a matter of the epa saying, we cannot do it right away. we will do it eventually. >> if they did say that, they would be violating a statute in the worst ways. >> do you really mean to say the only difference between greenhouse gases in the air pollutants that congress had in mind when it enacted the clean air act is green hair -- house gases do not have a local effect? -- the quantity is
greater and that is why there is a discrepancy between the thatcher tory threshold and the one that epa has? -- between the statue a tory threshold and the one that the apa has? -- epa has? >> one is the one that your honor and justice sotomayor were referring to. -- whether you rew or regulateeshold down to the infinitesimal level, you are rewriting the threshold. another is the requirement that this particular program be focused on these area specific air-quality impacts. central features of the psd statute that we think show that. the first is section 7471.
which is on page 1380. that is the -- 13a. that explains what psd refers to. program says the consists of emissions limitations as may be necessary to prevent significant deterioration of air quality in each region. resident --in each regionally defined effects on the air people breathe. >> there are many statutes and the wrigley tory area where congress passes a statute -- in the regulatory area where congress passes a statute. it turns out there are so many -- often, i would think courts read in an exception.
example, if there were a statute that said you have to throw out all bubblegum that has been around for more than a gum usedhat about bubble mo in a display case that nobody intends to eat? we can say, it doesn't mean to apply to that. why can't the epa do that as well? make sense here, so we read in exception into it, unwritten. >> i don't know that there actually is a president that says the agency can do precisely what it did here. that says the agency can do precisely what it did here. >> i am a little confused. pollutantsto be where it doesn't and that just
250. just 250.to 250.it just one minutes -- emits million. view that theur getute was written only to to measurable pollutants that are at 250 or can be wrought below 250. >> it's not our position that the purpose of best available control technology is to bring facilities below 250. -- hat's a minimum
hg something that is about that. it will never be brought below that. >> it is above that for millions of entities that congress intended to exempt. >> if i could follow-up on justice breyer's question. you keep saying, epa is violating the specific term. raisesundrum this case is everybody is violating a statutory term. we can't do the 250. it says any pollutant. or each pollutant subject to regulation. nobody would think that the most natural or reasonable readings are any pollutant if they have localized effects but not otherwise. what has happened here is you
have this new kind of the that makesemission the terms of the statute you reconcile. -- you're reconcilable. cilable.on that the more reasonable of the two things to do? those twogree that dilemmas are equally situated. certainly, 100 and 250 tons per year is a clear command. the question of how to interpret air pollutant -- >> one is a number, but the pollutant subject to regulation -- the epa has treated those phrases as meaning
a single thing, which if you put aside the absurdity problem in this case, everybody would agree is the most reasonable interpretation. you are saying the epa should jump that interpretation because there is a new kind of chemical that makes the numbers not work. >> it goes much beyond the numbers. i think if anybody was looking at the psd statute in isolation without the benefit of massachusetts versus apa, -- versus epa, they would conclude it refers to pollutants that only have the area specific impact. it is also two other features of
the statue which make it unambiguously clear. the first is section 7475 ee. mandates the one an analysis that has to be conducted in every permit in process and the one analysis congress is required be available for public hearing. that is the analysis of the conditions at the site of the facility and each area that is going to be affected. books we began the discussion by saying putting massachusetts versus epa to one side. i was in the dissent, but we still can't do that. [laughter] >> assume we are bound to by both the result and reasoning of that case.
and also the american electric versus connecticut case. force,gulatory significance, do those cases have under your approach and that by the chamber of commerce in the blue brief? that might be consistent with the subject we opened. connecticutrn to after doing massachusetts. the same day that massachusetts came out, this court decided environmental defense versus -- even whencided a defined term is construed a particular way, it doesn't mean the same term can be construed differently where context requires. , after why massachusetts
indeed holding that the definition of pollutant included greenhouse gases, didn't go there -- stop there. toasked whether applying it the title ii provisions on motor yield extreme measures or counterintuitive results. only then did they direct the epa to apply the definition. they understood that the literal definition of pollutant was sufficiently broad that it applied without some additional analysis of the context of the provisions. >> what else does it cover other vehicles?- mobile >> there are multiple places where it appears in the act. they have interpreted the words, anyair pollutant to mean
subset of the pollutants that this definition -- >> that is because the section that it is in is a different definition directly. >> that is not correct. in the pstn title v provisions, a has interpreted that to mean any regulated pollutants. same thing with the provision on disability. >> your answer is they can be treated differently under different parts of the act. >> it was an act of interpretation in epa versus massachusetts. reading that decision as a give, what did the court to that interpretation?
-- if it weren't the case that that was an additional part of the inquiry that was necessary. what else? aside from psd. new sourcedes the performance standards program of section 111. this case is not about whether the epa can regulate greenhouse gases from stationary sources. and is about whether state local permitting authorities, authorities, are supposed to regulate plant by plant under this particular psd program. the nsp is program -- the nsps program.
nsps does not have the thresholds. it lets the epa decide what of sources are most contributing. it doesn't require the analysis e, which the epa has told authorities not to conduct because it cannot be done for greenhouse. gases.nhouse a permits the epa to do this, national uniform emission standard. rather than asking 90 state and local permitting authorities to decide plant by plant what they think each plant in their jurisdiction should do about -- opinion, is it 7411?
you are saying they could use 7411 to get to the same place they are today. >> they are doing it, your honor. >> that i don't know what this case is about. can they do the same thing under one provision or the other. it is not exactly the same thing. it is the difference tween betweenhe epa -- letting the epa have national -- and thenandards -- versus this command-and-control psd system. thinks -- authority has to decide which mechanisms to use.
>> it says such standards with such modifications as he deems appropriate. that is the language. if this is the right program, why couldn't they copy it word rules and justhe put a different section number at the bottom? i know you'd have a preferred way to do it, but if a disagree with you and they think this is the perfect program, why can't they do it? andhe statutory language structure of the psd program does not encompass these kinds of pollutants that have globally dispersed results and not area specific impacts. for the reasons i have indicated. the1, which says significant -- prevention of significant deterioration is
focused on each reason. -- region. the fact that this was assigned to 90 state and local permitting authorities. you were going to discuss not just the massachusetts case, but the follow-on case. connecticut. >> the only point to make about that is that is the case that held that the epa has authority dresssection 111 to a greenhouse gases without having trying to do is here. it has to do it through national omissions standards. connecticut did not approve the psd provisions here. >> the other thing you are going to 74 -- you only got
lebanese. (e).11 prevention of significant deterioration. the only required study as of local conditions. to 90s a sign -- assigned state and local agencies. like globalroblem state ande think local authority should make the decisions rather than epa. >> you're reading would say that permitted tos not in naaqs.teria
>> if they had tried to establish naaqs for greenhouse gases, that would be contrary to the stature's -- standards. those are all about regional standards. if the gas goes up to the atmosphere and met since -- is mixed there, it doesn't work. >> take another five minutes in we can -- and we can begin by answering the question. the government -- the first is that their brief greenhouse gases can be regulated with respect to sources that are already covered by psd. not advocate does your concern about the broad reach of epa regulation, does it? >> i think it does your honor.
deal with theht specific issue of rewriting the thresholds, the fact that the psd provisions for the reasons i air indicated is limited to quality impacts would be violated merely i applying vest available -- best available controller technology. -- only beld not applying that with respect to sources that are already required to operate under psd permits. >> that's right. i would see your honor, that while they have tried to separate those issues out, who hasone issue about to get up permits any other the bestabout available control technology. they've done is say the words subject to regulation
shall only apply to greenhouse gases if you're committing them at levels of hundred thousand tons per more. they rewrote the permit -- provision that says who has to get a permit and they rewrote control available technology. i'm not sure how much time i have. [laughter] if i could then turn briefly to the second argument. -- if not, we have a second narrow argument. which it dresses the requirements for triggering the psd statute. our opinion is very much like judge kavanaugh. only triggered by major
amounts of a pollutant. >> that is not judge kavanaugh's position. is naaqs.on focused on the language of any area to which this part applies. it is because parts see applies place to some areas and not others. >> can i ask why judge beenaugh's argument has left by the wayside. >> we get that with a slightly different result. >> it comes from different statutory language. think notwithstanding that there is some overlap between the arguments, the legal rationales are entirely
different. i am curious. >> this is the argument we made below. the point -- >> i don't think that answers the question. i know that is the argument. are you saying you cannot defend his argument? >> it is just that it has been hard enough to make two alternative arguments in the form. -- forum. [laughter] have -- the next criteria. for 30 years it has been adding things. what about all those? it is true that itce 1980 -- although propose our interpretation as
its original interpretation, epa has said any pollutant would be sufficient to trigger permit requirements. that has had virtually no practical effect. pollutants, we have only been able to find two or three exceptions over 30 also, invariably they are committing one of the criteria pollutants. this made no difference until greenhouse pollutants came on the scene. counsel.nk you, general mitchell. mr. chief justice, and may it
please the court. there are two issues in this case. the first is that the term air pollutant cannot be given -- even after the ruling in includesetts that it all things airborne for purposes of title to. -- title two. the unambiguous statutory requirements of those programs are incompatible with regulation of greenhouse gases. the epa thinks it can fix this problem by imposing in age and she created regime -- and agency created regime. congress does not establish round holes for square pegs.
and agency cannot make a whole square by rewriting language. >> the language you are referring to is the references to 100-250. it seems to me that is an odd and to drive such an port interpretation -- such an important interpretation. those were about the size of the facility. they were not supposed to have -- they were not supposed to make any distinctions as to the type of pollutant. you're essentially using those numbers to make distinctions as to the type of pollutant rather -- it seems to me a more sensible approach would be to say the numbers don't work for this new kind of pollutant. we will up the numbers.
that will leave the rest of the statute and all the purposes of congress intact. >> the reason we think you'd -- we don't think this approach is permissible is because there are provisions in the clean air act. 7661a says epa and -- cannot exempt any source. in the statute, epa cannot be claiming to seek discretion when congress has held that kind of discretion. that is akin to dispensing program -- power. the question to ask is whether the term air pollutant's flexible enough to accommodate. epa agrees it can mean different things. massachusetts said that air polluted includes anything
airborne. but epa has refused to carry over that definition. them is part of the sps program. --nsps program. epa does not interpret that to mean all things airborne. it doesn't even interpret it to mean all regulated pollutant. s. -- the meantitle v any regulated air pollutant. finally, they interpret the phrase any pollutant to mean any visibility impairing pollutant. apply tos forced to be every provision of the clean air
act, all the epa interpretations would have to be discarded. >> if you think about the definition, you are saying what does any air pollutant mean? does it mean what epa has said it means for 30 years? or does it mean something more -- along the lines of what you are saying? you would obviously choose epa's version of the thing. the only reason you are not choosing that is because of these numbers that are in the statute which were designed only to distinguish between major and minor imagers. -- emitters. etween can distinguish b
them, why wouldn't you do that? >> because it is not clear that phrase unambiguously means that. >> let me ask you a question. thating we agree with you neither massachusetts or alabama -- there is no statutory command to come to epa's conclusion. what do we do? them, or doeversed we tell them, no, you are wrong at step one. there is ambiguity in the statute. towe are asking the court hold that a greenhouse gas interpretive -- inclusive interpretation does not fit with the unambiguous designations of the programs. --t
>> i think where justice kagan definitions put the from 7479 in your mind and it mean something. you know what i am talking about? the definition of the major emitting >> now, we look at 74 and 75 and it says you have to have a permit and use available control technology. for what? then we go to the definition and it says among other things for say -- any source with the otential to emit 250 tons or more of pollutant. well, that could mean every 500 people. you have to do something about the statute because it doesn't mean ever football game they have to have a permit or all my
relatives are together, they have to have a permit. it can't mean that. so we have two choices. choice a, which is what you would like. if it means any air pollutant, air regulated air pollutant but not greenhouse gases. that's choice one. choice two is it means any air pollutant including greenhouse gases but implicitly e.p.a. has the authority to exempt small emitters. see? now, which does the less violence to the staut -- statute? >> choice run -- one. >> i knew you would say that. [laughter] >> the reason choice one does less violence is because the term air pollutant is flexible and has been acknowledged to be by the e.p.a. for decades. it's permissible for an agency to construe ambiguous statutory
language to avoid absurdity, in fact it must before taking choice two, to rewrite unambiguous statutory language. if the simple choice were etween one unambiguous statutory provision and another, then e.p.a. would have a much stronger case for deference here. the problem for e.p.a. is that they have insisted for decades that it can mean different -- >> i get that. but if you had been sitting in congress and the senate, mr. billings i think is the staff person and senator mussky and suppose you had this choice put to you with your language, we'd either like to have the authority implicit here to exempt the football team, the it i amitiers or we'd like
-- emitters or we'd like to not to cover it al aught, which do you think the senate would have chosen? >> i think they did make a choice and it's in the language of the bill that the e.p.a. hawes -- does not have the authority to exempt any main source from title 5. they say that right there on page 4 -- p.s.d. 5 is not the requirement. it's just a record-keeping provision. >> that's true. >> so why should we exempt people from title 5? that's not what's causing the burden that you are talking about. it's just a record-keeping provision. >> but it's a very burd ensome recordkeeping provision, by -- which e.p.a. acknowledges. that's why they're not willing entity it on every that emits more than 500 a
year. it's possible to impose that on large industrial sources but not on a corner deli or the manager of a high school. so again to return to justice breyer's question, which would ngress have chosen, rigid, narrow permitting thresholds, to up hold from the department those unambiguous requirements, but instead they provided looseness in the definition of a pollutant which even though this court held unambiguously includes all things airborne, yap -- e.p.a. has narrowed it -- >> if you can narrow it, why not narrow that one? any air pollutant including greenhouse gases to the extent that they can be sensibly controlled under the statute.
now i've worked with the word air pollutant. i can do it any way you want. we do have exceptions when agencies enforce statutes. we do have exceptions from general language all the time. >> i don't think it would be a permissible act of statutory construction to say that carbon dioxide can be an air pollutant and not an air pollutant at the same time. >> you would accept his definition, wouldn't you? ir pollutant means any air pollutant that can be sensibly controlled under the statute? >> it can't -- >> it can in large quantities. you don't see anything wrong with large quantities. it's just the small once -- ones you have a problem with. are you saying it doesn't make sense to control major pollutants? >> we're sigh -- saying because of the unambiguous quirments it
fix - requires e.p.a. to the small problems the fix the small problems the >> what would congress have wanted, given the obvious purpose of the acted. that's an important question. the other question is what did the agency define here? this is the apex of cheveron deference. there is nothing that gets more deference than this agency with respect to this complicated a statute. even if 24 arises from -- because there is this new kind of emission which makes the two terms in the statute irreconcilable, why isn't that a classic case war -- where the agency gets to cloose how to make the thing work as best it can when a changed circumstance makes it work not entirely the way congress had fore told? >> the court rejected that very idea in brown and williamson
where tobacco -- tobacco was trying to be regulated by the fda where nicotine was clearly a drug if you looked at the definitenition in isolation did you -- but the requirement of the food and drug administration -- >> to accept your argument we'd have to reverse massachusetts? >> not, no, not at all. justice. >> well, you're saying congress didn't intend to control this pollutant. we said there that it did. >> no. the court only needs to revisit massachusetts if it believes air pollutant must have a uniform, unambiguous definition everywhere it appears in the clean air act. not even the e.p.a. is making that assertion. so there no reason for massachusetts to conclude at l that in the context of the possible t it's not
for the court to construe greenhouse gases. if the court has no further questions i yield my time back. >> thank you, mr. planinicel. >> mr. chief justice and may it please the court, greenhouse gases pose the same threat to health and welfare when emitted from a power plant as from the tailpipe of a car. in american electric prour -- power this court said it was plain that this court has the adash authority to regular late generally from sources like power plants but it said it lacks any authority to regular late the same emissions from the same sources causing the same harms? that's not a reasonable reading of the statutory text and it reverts on a fundamental misunderstanding of the p.s.d.
program and -- >> why would it be unreasonable to give the e.p.a. authority to regulate mobile sources and not stationary sourced given that the stationary sources have to be licensed in this fashion and it produces all sorts of other problems? it doesn't seem to be irrational at all. >> well, the court said, i think, that it was plain congress gave the e.p.a. the authority to regular late stationary -- regulate stationary sources. that i think gets to a fundamental premise where the petitioners are just wrong. section 74-11 in the p.s.d. program are not deemed as different problems. they're aimed at the same problem and you can see that from the statutory text. for example, if one looks at a 3 which you
can find at page 21 a of our appendix, you will see that in order to become eligible for psd permit if you're a major emitting facility you've got to, and if you are looking at subsection 3, under 3 a and 3 b you've got to show that you can meet all of the local air quality requirements of the naaqs, those standards and then you have to meet any other applicable standard of performance under this chapter. that language is not an accident. in 7411 the nationwide standards that are set that mr. keisler was discussing are called standards of performance. so it's specifically picking up the secret -- section 74-11 standard. then if one turns to the definition of best available control technology under the
p.s.d. program which you can find at 34 a of our appendix to the brief, you will notice that congress specifically linked the operation of the 74-11 standards and the best available control standards under the p.s.d. program. what it says is that once congress has set aunder section 74-11, a nationwide standard, that becomes a floor for the evaluation of best available control. >> are you reading subsection three a, b, and c, are you reading those in the alternative? i read that all three have to be complied with. >> yes, they all three have to be complied with. >> then that does president help you. you are right back where we started, we have the tonnage per year requirement. >> well, i'll be happy to get to that but if i could just finish off this point about the connection between the
operation of the two because i think it's of critical importance here. what you are supposed to do is use best available control technology to get above the floor. the program sets those standards every -- on an eight-year basis and the purpose is to keep raising the bar during those eight years. this goes back to senator mussky in 1977. the program was enacted adds part of the 1970 act. the psd program was added in 1977 because of dissatisfaction over both the pace and the comprehensiveness of the air pollution regulations that were being -- being enacted by e.p.a. under the 74-11 standard because under 74-11 e.p.a. has to go one source as -- at a time, power plants, factories, and then the next thing and the
next thing. the point of the psd program is to put in place additional requirements. this exactly what copping was after so that when there is a standard on the 74-11, you keep raising the bar but whether there isn't a standard, psd is supposed to fill the breach. it makes sense because the program applies to new construction or major modification. the idea is that you wanted to get in there at the beginning when the source is first being constructed so that they don't lock in old pollution-causing technology, they've got to meet best available control technology the >> i think i have an idea what that looks like with respect to sources already regulated because they're relating to the naaqs, filters, scrubbers, all that. i'm sure that's oversimplefied.
but what does best available technology look like with respect to greenhouse gases? >> it's an evolving technology, and there are now permits issued and very helpful discussion in two places. the state respondent's brief pages 335-39 and the cal pine amicus brief. cal pine is a major utility -- >> but am i right that the greenhouse gases do not affect ambient air quality in a way that the current or naaqs provisions do? when you're dealing with regulation of energy usage, right? as opposed to emission of lead or -- >> well, the main thing now is significant energy fishs. -- efficiency. for example, different kinds of turbirnes and processes -- >> the same as for domestic,
energy efficient light bulbs. >> i really don't think this is about light bulbs. mr. chief justice. >> no, but my point is that at the moment that is largely true. >> of course the e.p.a. is considering and scientists are trying to develop other technologies like carbon capture technology that. -- and that's the whole point of best available control technology, that as best -- better options come on line, it allows for that. that's how the statute is supposed to work. >> if you regulate -- i'm trying to understand the arguments in your brief. if you prevail on the first, in other words, greenhouse gases may be regulated with respect to sourced already subject to permitting, my understanding is it gets you to 80% of the greenhouse gases. >> that's correct. >> prevailing on the second gets you to 86%. >> that's correct.
>> so this is a fight about an additional 3%, and yet according to the petitioners that brings in there huge regulatory problem of regulating the high school football game and whatnot the just on -- as an aside, human beings are actually net neutral on carbon emissions. you will need a chimmist to explain that but it doesn't matter how many family members you have. but with respect to the lights at the game. maybe. but no, there is a significant expansion of the permitting obligation under 9 e.p.a.'s understanding of permitting. but let me try to explain why it's not gust -- just about the 3% and then get back to justice kennedy's question. the problem here is that the options, one of the problems, significant problems, is that
the options that the american chemistry council have advanced and even that judge cavanaugh has advanced would require an invalidation of or at least a significant revision of e.p.a.'s 34-year understanding of the meaning of the phrase "any air pollutant in 74-79-1 which they have always interpreted to mean any air pollutant subject to regulation under the act. you can't apply that 34-year-long agency interpretation here and get to one of those results. you've got to change it. >> but a 34-year agency interpretation is not a statute. >> no, it's not. >> and you are saying rather than alter our 34-year interpretation we're going to revise the provisions of the statute. i don't think that's a good trade. >> well, with all due respect i
don't think that's what the agency is doing the if i could just finish this off. if you take the -- if you draw the line either at net pollutants or all other previously regulated pollutants or if you draw the line at local pollutants but not other pollutants, you knock out some sources that have been subjected to the permitting requirement previously. >> can i ask you this question about e.p.a.'s position? because this is something i don't understand. on the one hand the e.p.a. says that applying the statutory thresholds to greenhouse gases would transform the p.s.d. program into something that would be unrecognizable to the congress that enacted the program, isn't that right? >> yes, they did say that. >> on the other hand e.p.a. says but that's what we're going to aim to achieve at some
point down the road. >> no, that's a fundamental misconception and i'll try to answer your question also, justice scalia the. what e.p.a. is saying this is a transition. it's not a rewrite and the gel is not to gradually expand the permitting requirement until they have all of the donekin doughnuts in america under it. it's the opt. they're taking a look at the standards used to decide who is eligible for a permit and looking to change those to the extent they can consistent with their statutory authority and appropriate chevron deference to essentially appropriately narrow the numbers of people deemed eligible. >> i thought e.p.a. said well, we're going to work toward that? >> no. let me give you an example -- >> well, i don't understand the position. if applying the statutory thresholds makes the program unrecognizable and yet that's
what they're going to aim to do down the road, get to the statutory thresholds, will it become more recognizable at that point? >> under the nuance there that i think answers your honor's question, the agency has discretion in deciding what constitutes the potential to emit 250 tons per year. what they have done historically is evaluate that on the basis of ansumption that the facility is operating 24 hours a day -- >> thren narrow it down to 31,000 people fully within this. you get title 5, 6.1 million. that sort of changes -- if that's the question, does in fact this provision give the e.p.a. the obligation to impose permit requirements on 41,000 usinesses of the size that
constitute at most 10 to 15% of the problem, that's pretty hard to accept. what i thought the wea was, was whether e.p.a. had the authority to implement this in a way that e.p.a. itself thinks makes sense. which might be on their own reasoning to not impose permitting requirements on tens of thousands, perhaps millions of small businesses. i thought that was what the question was. >> it did seem to be the way they put it. >> it is, but i think the two things converge, justice brier -- breyer. if you apply the standards e.p.a. uses now, to sweep in all these people, and e.p.a. says well, -- >> but the words they used in their opinion were streamlining. >> r50eu79 >> the words they used in their
opinion implied to me that they're never going to want to put tiny boilers under this because it just doesn't do much good and they're sentence -- expensive to administer. that's how i read it. >> right. >> this has been very helpful. i learned i'm not a net emityitier -- emitter of carbon dioxide. i thy -- am part of sustainable development. and one more thing -- look, 74-11. remember the what chief justice just said about the 83% and the 8% and even if you lose you can still regulate 83% and if you win, you can regular late 86%. my goodness, the 74-11 is over there letting them to to -- do precisely what they want.
why do you need this? that's the part i haven't got a clear answer to in my mind. >> it's the reason i tried to suggest earlier, justice breyer, that it's supposed to work at -- as a complement to 74-11. it's being used now, at least the e.p.a. is contemplating setting greenhouse gases. -- for power plants. that's a very significant emy. er but not the only one. >> put those all in. write standards that require them to get a p.s.d. permit. what's wrong with all that m >> they can. by the problem is that's going to take a lot of time. that was the very reason congress put the psd program into existence in 1977, because of the dissatisfaction, the time it took to go source by so, pollutant under pollutant under the 74-11 program. >> i just want to make sure i
understood correctly. under 74-11 you can require a p.s.d.? >> no. you can set a national standard. part of the reason i said i think it's just wrong to think about the p.s.d. program as addressing a different kind of problem is that you've got to meet the 74-11 standard in your p.s.d. standard. >> let me get back to justice alito's question because i had a similar question. it seems to ple it would be completely responsible and understandable if e.p.a. had said the 250 don't work with respect to this category of pollutant. congress didn't know that this pollutant was out there when it wrote the numbers. it was trying to distinguish between major and minor emitters and the real yubs are x and y for this type of pollutant. i understand that the e.p.a.
may have felt oh, gosh, can we really do that? but the solution e.p.a. came up with seems to give it complete discretion to do whatever it wants whenever it wants to and -- it seems to be much more problematic if they just it to 250 or 10 times that. >> i know it's been portrayed that way but i think they're trying to do the opposite. they're trying to say look at what happens when you emit 240 tons a year and use that for analysis of how like -- much this source is likely to em -- emit and you could drastically lower the number of sources to be found to emit 250 tons a year. that's their objective here. >> are greenhouse gases the only air pollutant for which e.p.a. has the authority to
change the statutory thresholds? >> well, the -- i'd like to make a point if i could about that. the real problem here is co 2. you actually have the six greenhouse gases, the other five you could use the statutory thrernleds on -- thresholds on without difficulty. the co 2 causes the difficulty. >> could they use this for any other pollutant besides greenhouse gases? >> they're saying we have an obligation to regular late. a regular -- an obligation to regular late when it's more than 250 tons a year and an obligation to get the permits out in a year. i don't think it is that they're asserting authority to rewrite the statutory thrernleds. they're dealing with a practical problem that's arisen
under the present circumstances. >> e.p.a. said in the explanation of this rule that e.p.a. could say that p.s.d. or title 5 applies only to certain g.h.g. sources. that een suggested that would only apply to certain g.h.g. sources and does not apply to the remaining g.h.g. sources. but you didn't seem to be any follow-up on that idea. >> i think the reason, justice ginsburg, is because that is not going to make -- the carbon dioxide is also a huge part of the problem so you're really not going to be getting to the heart of the problem and there really is an urgency here. part of what is driving the
e.p.a. is understanding that this is an urgent environmental problem. it's the greatest environmental problem we face now in e.p.a.'s judgment and it is one that gets worse with the passage of time. the effects of -- are cumulative and they're delayed and so every year we wait, we make the hole deeper and create an even deeper threat to future generations. >> i'm sorry. i didn't get an answer to justice alito's question and it's an important one. there are currently [captions copyright national cable satellite corp. 2014] of -- there are currently criteria of pollutants under the statute. one that does cause harm to ambient air quality not already covered and if you cover a n.a.q. for that, you decide you want to regular late at a different threshold, just like here, is this a particular assertion of authority only
with respect to greenhouse gases or does it only -- if you are going to use the n.a. -- naaqs source then you would be under the rules of naaqs pollutants. but -- >> can you publish an act for greenhouse gases? >> i think it would be within e.p.a.'s authority to do so but there are significant problems with trying to regulate that way. it's important to understand, mr. chief justice, that the p.s.d. program applies to more than just naaqs pollutants. >> ok. if there is a pollutant that isn't currently regulated and science advances to the point you think it should be, could you change the threshold for that? >> i guess i would say e.p.a. would find itself in exactly the same circumstances it finds it elve in respect to greenhouse gases, it feels like the statute compels it to regular late, it kicks in atd 250 and you have to issue a
permit inn a year. that would require that confluence of circumstances. >> why does it have to do that? statutes all the time have implicit exceptions and not every statute has such exceptions written in words into it. i mean, you know, it's a classic example, one after another. stat ute that requires animals to pay 50% on the train does not apply to snakes. ok? i mean that's the most common thing in law. so what's the big problem here with -- that everybody seems to have except me, i mean what's the big problem with writing an implicit exception so that you don't regulate tiny little things which no one normal i wants to have regular lated? >> if the court were to do that, that could -- would certainly justify the e.p.a.'s
judgment here -- >> the problem is that i will hear from many, perhaps it isn't a question of what i would like to do, the question is what does the law permit and therefore it's helpful if you can or others think of similar examples. >> well, e.p.a. has committed itself in the regulations, in the rule-making proceedings to try to bring the 250 tons per year into alignment with the expectation that only large sources will be regulated. that's what e.p.a. is committed to. >> general verrilli, i don't have an expansive notion of reading exception into a stat tute -- statute there are not there as justice breyer does but just assuming that you can read exceptions, that isn't the issue here. the issue is whether you can make exceptions unnecessarily whether the absurdity in
question doesn't flow inevitably from the statute. when the statute can be interpretted -- interpreted toot way that would not produce the absurdity, aren't you compelled where there is ambiguity to adopt the interpretation of the statute that does not produce absurdity rather than adopting the interpretation that produces absurdity and then going around altering the provisions of the contract? of the statute? breyer's take justice bubble gum example, yes, i suppose, would you have to make an exception for bubble gum in the display window if the statute were subject to two interpretations, one of which would include display windows and the other one of which wouldn't? it seems to me of course you would have to adopt the interpretation that didn't include display windows and that's what's going on here. yes, there is absurdity but the
issue is how is that absurdity to be taken account of it -- of by simply letting e.p.a. rewrite the very clear language of the statute or else by adopting a perm is -- permissible interpretation of the statute that does not lead to that absurdity? i think that's quite a different question from what we've been discussing the >> two points about that if i could. first, that goes to the question of what triggers the permit. play-action. -- application. it's only the expansion of the number of permit applicants that even raises this question of so-called absurdity. it doesn't go to the argument -- the petitioners are making a far more substantial argument that e.p.a. lacks any authority to consider greenhouse gases emissions under the provisions even for source that's have a permit for their emissions of nongreenhouse gases. so it only goes to the question of the scope of the triggering
provision, not to e.p.a.'s authority to use p.s.d. to regulate greenhouse gases for entities that are already subject to the permit for other reasons. now, with respect to the trigger, would -- what i would say about that, justice scalia, that the statutory language is any air pollutant. reading massachusetts versus e.p.a., the e.p.a. came to the conclusion that that language necessarily encompasses greenhouse gases emissions. that conclusion is most consistent with the e.p.a.'s statutory obligations here because if the choice is -- you can say the choice is between doing something sensible and absurd results, but really the choice is between throwing up your hands with respect to what e.p.a. considers to be the most serious air pollution problem we have or trying to deal with the imimplement akse problem we have -- >> wouldn't it be right to say
that the rule justice scalia is referring to only applies if there are alternative interpretations that are consistent with the legislative purpose? there have to be plausible alternative interpretations of the statute and reading the statute to mean any pollutant except greenhouse gases except for purposes that have nothing to do with the statute, is not a plausible -- >> that's exactly the argument and what massachusetts did when it read massachusetts versus e.p.a. and thought about that in the context of the regulatory goals -- >> the whole worse -- course of the argument against that is that no, the statute evidenced concern with ambient area -- air quality and requires that to be measured and the agency acknowledges that you cannot possibly measure the effect on ambient area quality of greenhouse gases. so it is not a clearly
compatible with the statute to bring greenhouse gases into regulation. >> and the other is -- this is quite -- i've got it focused now it seems to me in my mind that we have two questions and i think they were well stated by justice scalia actually. the first is what is the alternative interpretation that doesn't apply here? that would be an interpretation that doesn't put greenhouse gases within the definition at all the that would be really unthinkable or have worse consequences than worrying about the interpretation of this trigger provision. so either we have to do the one or the other. either we have to interpret the trigger provision with flexibility so that there are written exceptions, hundreds of exceptions in it one way or the other or we have to say you can't do that and therefore
they don't apply to all. which is worse? >> i think that states it fairly. i think that states it fairly. >> depends on what you mean by unthinkable, general verrilli. what is supposed to be unthinkable? that greenhouse gases should not be regular lated? maybe that is unthinkable. but the issue is, is it unthinkable that congress did not intend to regulate greenhouse gases when it enacted the current provisions of the statute? >> but tnt -- isn't that the argument? alternative 's interpretation of the statute might have been reasonable before massachusetts but no longer is, isn't that right? >> here we had a stat tute that
had very specific numbers and the agency said these numbers are absurd, we're going to multiply by 40. -- 400. in the entire lift of federal regulation what is the best example you can gib us of an agency doing something like that where it has taken a statute with numbers and crossed them out. and written in the nubbeds it likes? >> obviously i wouldn't character rirse it exactly that way. i think morten against ruiz is like this in the sense that the agency had the obligation to provide something to a certain population and it didn't have the funds to -- available to provide it to the whole population and it made the judgments it made to try to get the program to work. >> what was that? >> morten against ruiz. if i give a hypothetical, if congress enacted a statute that
says customs authorities, border authorities have the obligation to search every cargo container that comes into the united states but no container may be delayed more than three days, if the agency were faced with those obligations and didn't have the resources and said what we're going to do is search the containers that come from places we think the risk is most likely, i think everyone would think that that's a reasonable interpretation of the agency's charge under the statute and that's essentially what the agency has done here. >> just to be clear, you're not say, -- saying, or are you saying that if you are denied the authority you seek here there can be no significant regulation of greenhouse gases under the act? you're not saying that? >> no. and i think i want to provide for specificy. in my answer if i could. the court has held in american electric power that the e.p.a.
has the authority to provide general national standards. now, with respect to the p.s.d. program i want to, i do want to emphasize that there is a distinction between the question of what triggers your obligation to get a p.s.d. permit and what counts as any air pollutant that triggers it, versus a situation in which if you are already subject to a p.s.d. permit because you are already emitting a naaqs pollutant or one of the other pollutants, whether under 75 a 4 you have to beat the best available technology control requirement -- >> that's the 83-86 question, right? >> that's correct, your lon. correct. i think those things are differ. >> so there are really three points. 74-11 and then triggering and
then if you are already subject to the permit. the question about whether the p.s.d. program is limited entirely to pollutants that affect local ambient air quality, i just don't think that adds up at the end of the day. for one thing, e.p.a. has been regulating since 1978 something called ozone-depleting substances. those have no local effects. they are substances that are released, go up into the statosphere, eat up the ozone and that then creates additional ultraviolet rays which -- >> they have local effects. everybody knows -- that's smog in los angeles versus montana, right? >> certainly greenhouse gases have those kind of local effects because they raise the sea level which causes flooding in certain places and droughts in other places. >> whether have the sea levels risen other than please in
>> well, certainly massachusetts. but e.p.a. has been regulating ozone-depleting sub stances since 1988. >> and congress aki he ised in that? raltfied 1990 they it. one thing they did was pecifically focus on ozone-depleting substance -- substances and they did not pull ozone-depleting substances out of the p.s.d. program and that's significant because they did -- >> i thought there was a very short time lag between e.p.a.'s assertion of the authority to regular late ozone-depleting substances -- >> years. i don't know if it was a full two years but the congress focused specifically on exactly
lou the ozone-depleting substances were going to be regulated. so i do think it's quite strong ratification argue -- argument and -- >> what's the -- i know where they're going to take this question. you are going to lose. >> i actually think that it's the judge cavanaugh approach and a.c.c. approach. >> there is a significant dwiffers -- difference between them. >> there settlement >> which one? >> i have another thought on that subject. as i said earlier, the whole problem in terms of expanding the permitting requirement is co 2. and so if the court were to say that any air pollutant can't be interpreted in the way that e.p.a. has interpreted it at the trigger level to mean what we think it says, what
massachusetts versus e.p.a. compelled and the court disagreed with that, seems to me that the answer that is least problematic from e.p.a.'s point of view, does the least -- causes the least risk of cleal -- collateral consequences with respect to establishing regulatory programs that go beyond p.s.d., if you say you can't -- would be to say you can't use c.o. 2 -- >> well, -- >> that's just a trigger, justice ginsberg. just at the trigger. we think that given that that says in unambiguous terms, section 74-75 and a 4 that anybody subject to a permit hads got to loop back for each pollutant subject to regulation
under the chapter, meaning the act, i just don't see how you can get under -- out from under that. >> you've got to follow the plain text of the statute there. it's 250 tons per year and you have changed that to 100,000 tons per year. >> i think you were going to .3 a, b, c? > 753 c does say if e.p.a. does set a greenhouse gases standard for a particular stationary source like power plants, then that becomes a condition of the permit. o assuming e.p.a. acts under 74-11, those have to be in. there say question about the definition of the trigger. now, we don't agree with it but basically trying to answer your
honor's question, that's what i think. >> you are leaving or suggesting out that -- the meaning that only the major facilities as defined now essentially would -- >> well, if you took co 2 out of there quation, i don't think the expanded scope of the permitting obligation is going to happen, because it's the co 2 emissions that expand the scope. >> just breyer said the difference between 83% and 86%, that 3% difference of who you are covering is thousands and thousands of people, or entities, i should say. not people, is that going to be the same under the reading that you are proposing? >> pretty close. but i think reason that the expollution -- exclusion of co 2 seems to be to be the most problematic is e.p.a. has an --
an established framework that applies to sulfuric mist and other things e.p.a. regulates under the program and you wouldn't be redefining the triggers to exclude things you had previously included. that's the riffle shot the court thinks is a problem. > if you are rejecting it, they're not going to say take our co 2 out. they're going to say there is a choice for e.p.a. to make. >> yes, certainly that's right but i think the argument that, as i read judge cavanaugh's opinion and as i understand my friend's argue did -- argument on behalf of acc was that the statute essentially compelled the conclusion. and the problem with that way of thinking about it is that there are many other pollutants, not naaqs
pollutants that e.p.a. has regulated for years and used as a trigger for years to require psd permits which would put you at risking excluding from the program if you were to adopt the judge cavanaugh -- >> i have to say in breading dunk reading the brief for the state and reading your brief i couldn't find a single precedent that strongly supports your position. brown and williamson is distinguishable i think for the reasons set forth in the reply brief. what are the sources you want to cite to support your position? >> sustaining the argument that the trigger applies here, there are not a lot of cases, you are right. not a lot of situations aeyes. i think morgue -- morten comes closest >> that's not cited in your brief, was it? >> no. it's cited in the rule-making
proceedings and rule-making opinions. so if i could, justices, just sum up here, the e.p.a. did what it did because the problem it's confronting is a problem that e.p.a. considers to be urgent. >> i don't want to interrupt your summation but this quick question, on the issue of what happens to a facility that is subject to the p.s.d. program because of the emission of other pollutants, the petitioners argued that the permitting process would be entirely different for greenhouse gases because it would make no sense of to require monitoring of local air conditions, it would make no sense to try to assess the effect of the he willition be greenhouse gases on the area in the region. could you just give a quick response to that? >> that's actually quite important. that's just not right. if you think about it, there are multiple pollutants that
are currently regulated under the p.s.d. program. some of them have national air quality standards and the local testing makes sense for those. others don't have national ambient air quality standards, like sulfuric acid mist and others. there aren't standards for those. the way e.p.a. has handled that look at the regulation, the re -- regulations where there is a substantial amount of monitoring required. but others for which there is no standard, they just exempt from the monitoring requirement. what the states do in their permitting processes with respect to the analysis requirement for the non-naaqs substances, for example, sulfuric mist, is to apply a very simple idea. you are not trying to make sure that the emigs are consistent with the overall air quality
level. it's a very simple calculus. more is worse, less is better the so with respect to things like sulfuric acid mist and ozone-depleting substanced, that is how it has always worked at the state level of the program. you look at what the levels of emissions are and try to get them down. so we're not treating greenhouse gases any different than sulfuric mist or any of the other substances that don't have local requirements. i would just remind the justices about the e.m.c. homer city case a few months ago the it's not unusual that the e.p.a. would be regulating substances in one place that pose effects hundreds or even thousands of miles away. that's what that case is all about and so, and you regular late those pollutants also through the p.s.d. program. so you don't, you aren't, in
that situation, looking just to see what happens in the local area the it's just never been the nature of this program. it jews -- just doesn't work that kay -- way. if i could jut remind the court in conclusion why e.p.a. did what it did is because this is an urgent problem. every year that passes, that problem gets worse and the threat to future generations gets worse. i think faced with the options e.p.a. had it made the most reasonable conclusion it could. thank you. >> you've got five extra minutes, to be fair. telling me i could have done my summation? >> you had already gotten going! you don't think greenhouse gases should be regulated at the 250 tons per year level, right? you said congress did not intend that and it would be
absurd. >> yes. >> so what level do you think they sho -- should be regulating at? what intelligible principle are you taking from the statute to say 100 now or 50 -- if you had all the roe -- resources you need, what level would you pick as the proper one? >> i think you would want to look at the definition of what it means to emit 250 tons per year and then think about the underlying notion that what congress was trying to do is impose these obligations on facilities that are capable of responding to them there -- that are going to continue to be major in quality and those are going to guide you in terms of what the number is. >> not sure i understand. would you pick the number that leads to the same class of emitters? >> i'm sorry, justice kagan. the same class of emitters as? >> the more typical context.
100, 200. are you essentially looking for the number that captures the same class of emitters? >> i don't know that it will be the same, but i think the number, the class will be a lot smaller than the class under e.p.a.'s current understanding of what it means to emit 250 tons a year. fix on d the e.p.a. the number? >> they tried to explain that in one of the rule-making orders. they tried to figure out the right balance point where they were accomplishing very significant emissions limitations while not sweeping in sources that were, that -- the very large number of small sources that would only make an incremental difference. what e.p.a. did essentially was say we can get to 85% of the emissions we're trying to get to by setting the standards
where we've set them. >> well, two things. one is you haven't saiding in -- said anything about the title 5 problem which is a 6.1 million persons or individuals, businesses coming into it, so how do you get them out of that one? >> i think you streamline. same idea. >> why? and there would be a good reason for this, but the bell that it rang is that agencies have tremendous authority about how they distribute their enforcement resources. they don't have to enforce everything against everything and that says basic principle. they have to put their money where it will go the -- do the most good. no one is really arguing that here gu -- but -- citizen suit he provision in the law. that's what they will tell you on the bottom line. that's the reason why because
it's subject to a citizen suit whether we exercise -- >> in other words, you would be out of it totally and any citizen could go bring a suit and say where's your permit? >> right. >> no further questions? >> thank you, general. mr. keisler, five minutes? >> you asked what this would involve in that kind of situation and i think your honor gave a perhaps absurd hypothetical about light bulbs. u should know that the permitting authority does address light bulbs in the cafeteria. it says that permitting authorities likely do not fleed to look at whether more efficient light bulbs should be used in a facility but -- because it likely would not
have sufficient payoff. but the fact that thear take -- talking about it brings into sharp relief the fact that when talking about this permitting propose -- process is potential invasive in every ats pec of a local plant's operation and that's what is so different between this and the nsps program which functions by -- >> we went to the examples in the brief. the 144 permits that have already been given. people who have managed to come into compliance under that. >> oh, it's certainly not our submission that every single one of these determinations is going to be unreasonable or outrageous or reach into the cafeteria but the scope of this is so different in nature and kind, a massive program that bo set up standards that certain
people would not be able to meet. an the second point is there is a selectivity about what the agency considers ambiguous and unambiguous. air -- any air pollutant is ambiguous enough to accommodate any regulated air pollutant but 150 to 250 tons a year is really ambiguous. i mention this because the selectiveness with which the e.p.a. has turned the ambiguity on and off so that in combination it maximizes the agency's discretion, we talk about what does the least violence to the statute, we have to think about it in other ways along with the separation of power. what the e.p.a. has done here is al locate an exceptional degree and troubling degree of latitude to design its own program. and there is another way to
think about the interpretive exercise leer and that is brown and williamson the brown and williamson started with the assumption that the definitions the statute encompass nicotine in cigarettes but then went on to say that giving the fda jurisdiction over those programs would be inconsistent with the regulation that congress enacted. they didn't go back and say we have to figure out which word in that definition means something different than we originally assumed. no further questions. >> thank you, counsel. the case is submitted. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014]
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